Virtual Currencies in the Eurosystem: Challenges Ahead

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Virtual Currencies in the Eurosystem: Challenges Ahead STUDY Requested by the ECON committee Virtual currencies in the Eurosystem: challenges ahead Monetary Dialogue July 2018 Policy Department for Economic, Scientific and Quality of Life Policies Authors: Rosa María LASTRA, Jason Grant ALLEN Directorate-General for Internal Policies EN PE 619.020 – July 2018 Virtual currencies in the Eurosystem: challenges ahead Monetary Dialogue July 2018 Abstract Speculation on Bitcoin, the evolution of money in the digital age, and the underlying blockchain technology are attracting growing interest. In the context of the Eurosystem, this briefing paper analyses the legal nature of privately issued virtual currencies (VCs), the implications of VCs for central bank’s monetary policy and monopoly of note issue, and the risks for the financial system at large. The paper also considers some of the proposals concerning central bank issued virtual currencies. This document was provided by Policy Department A at the request of the Committee on Economic and Monetary Affairs. This document was requested by the European Parliament's Committee on Economic and Monetary Affairs. AUTHORS Rosa María LASTRA, Centre for Commercial Law Studies, Queen Mary University of London Jason Grant ALLEN, Humboldt-Universität zu Berlin Centre for British Studies, University of New South Wales Centre for Law Markets and Regulation ADMINISTRATOR RESPONSIBLE Dario PATERNOSTER EDITORIAL ASSISTANT Janetta CUJKOVA LINGUISTIC VERSIONS Original: EN ABOUT THE EDITOR Policy departments provide in-house and external expertise to support EP committees and other parliamentary bodies in shaping legislation and exercising democratic scrutiny over EU internal policies. To contact the Policy Department or to subscribe for updates, please write to: Policy Department for Economic, Scientific and Quality of Life Policies European Parliament B-1047 Brussels Email: [email protected] Manuscript completed in July 2018 © European Union, 2018 This document is available on the internet at: http://www.europarl.europa.eu/committees/en/econ/monetary-dialogue.html DISCLAIMER AND COPYRIGHT The opinions expressed in this document are the sole responsibility of the authors and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the European Parliament is given prior notice and sent a copy. Virtual currencies in Eurosystem: challenges ahead CONTENTS LIST OF FIGURES 5 LIST OF TABLES 5 EXECUTIVE SUMMARY 6 1. GENERAL INFORMATION 8 1.1. Definition and Focus 9 1.1.1. VCs and existing financial instruments 10 1.1.2. Distributed Ledger Technology 11 1.2. Differentiation 12 1.3. Border Problems 13 1.4. The Politics of the Cryptocurrency Movement 15 1.4.1. The Political Economy of VC Schemes 16 1.5. Early Regulatory Responses 17 1.5.1. Administrative decisions 18 1.5.2. Judicial decisions 20 1.5.3. Legislative acts 21 2. PRIVATELY ISSUED VIRTUAL CURRENCIES 23 2.1. The Direct Challenge 23 2.1.1. A question of credibility 23 2.1.2. An open back door 25 2.2. VCs as a Vector of Financial Contagion 25 2.2.1. Contagion from the shadow payments system 26 2.2.2. Contagion from risky digital assets 27 2.3. Conceptual Challenges 28 2.3.1. The problem of res digitales 28 2.3.2. Money or securities? 29 2.3.3. Differing conceptions of money 30 2.3.4. The abandoned middle ground 31 2.3.5. Monetary competition 33 2.4. VCs as ‘securities’ in the European context 34 2.5. Regulating a Revolution 35 2.5.1. Defining regulatory tasks 36 2.5.2. Financial Crime and Tax Evasion 37 2.5.3. The Role of Regulatory Technology 37 3. CENTRAL BANK ISSUED VIRTUAL CURRENCIES 39 PE 619.020 3 IPOL | Policy Department for Economic, Scientific and Quality of Life Policies 3.1. Reasons for CBVCs 39 3.2. Design considerations unique to CBVC 40 3.2.1. Access 40 3.2.2. Anonymity 41 3.2.3. Accessibility 41 3.2.4. Interest bearing 42 3.2.5. Transfer mechanism 42 3.3. CBVCs in the ESCB and Eurosystem 44 3.4. Central Bank VCs Issued in Third Countries 45 4. CONCLUSIONS 46 REFERENCES 47 ANNEX I 52 ANNEX II 53 4 PE 619.020 Virtual currencies in Eurosystem: challenges ahead LIST OF FIGURES Figure 1: The top 25 jurisdictions by number of ICOs and volume raised in ICOs 18 Figure 2: The ‘money flower’ 44 LIST OF TABLES Table 1: A comparison of different representations of value 52 PE 619.020 5 IPOL | Policy Department for Economic, Scientific and Quality of Life Policies EXECUTIVE SUMMARY 1. This paper examines the impact of Virtual Currencies (‘VCs’) on central banks in the Eurosystem.1 As our approach makes clear, economic accounts of the nature and functions of money are essential to any description of VCs and monetary policy, but this briefing paper focusses specifically on the legal aspects of VCs, money and monetary policy. 2. The paper is divided into three sections. In Section 1, we define VCs, explain some of their salient technical and economic features, and summarise their legal and regulatory treatment to date. VCs bear similarities to, but are distinguishable from, existing financial instruments including cash, bank deposits, and e-money. VCs are a species of financial hybrid that defies straightforward placement in established categories, and exacerbate ‘border problems’ between the regulated and unregulated space and between national jurisdictions. VCs are the product of a libertarian political project that is antagonistic towards central banking but harbour technological innovations which may be beneficial to the broader economy and monetary system. Most regulators have taken a ‘watch and wait’ approach to avoid stifling beneficial information. We recommend vigilance and coordinated action at the European level. 3. We draw a basic distinction between privately issued VCs and VCs issued by central banks. While they may share some technical features, these two classes of VCs raise some unique issues and will be treated separately in sections 2 and 3 respectively. 4. Many privately issued VCs pose a direct and intentional challenge to the monetary system and to central banks. In our view, however, privately issued VCs do not currently pose any serious risks to central banks’ money creation role in the Eurosystem. Further, we do not think that any VC currently in the market is likely to qualify for ‘money status’ in the near future. This justifies the ECB, the NCBs and national regulators maintaining a watch and wait strategy. However, this assessment is subject to change as the market in VCs matures and central bankers and regulators must monitor and respond proactively. 5. In our view, VCs do raise a number of issues of relevance to the Eurosystem. VCs (i) highlight difficult conceptual problems in the concept of ‘money’ and its relation to currency and non- currency payment systems; (ii) raise questions as regards the definition of securities, as many VC tokens likely fall under national and European definitions of the term but present a new class of digital security (‘crypto assets”); (iii) raise questions about the legal conceptions of immaterial objects as objects of property law that have implications for VC tokens’ legal categorisation (whether as ‘money’, ‘securities’, ‘commodities’, or anything else). 6. Further, VCs could create risks to the stability of the financial system if VC markets continue to grow at the current pace and continue to interact and entangle with the regulated financial system. This might occur (i) through regulated entities taking part in VC-based activities directly, (ii) unregulated entities offering mainstream financial services via VCs, (iii) regulated 1 As explained by Lastra in Chapter 7 of International Financial and Monetary Law (Oxford University Press, 2015), the European System of Central Banks (ESCB) is the central banking system of the European Union. The ESCB has a dual structure with the European Central Bank (ECB) at the centre, headquartered in Frankfurt, and the National Central Banks (NCBs) at the periphery. The ECB and the NCBs of the Member States whose currency is the euro constitute the Eurosystem, a term which since the Lisbon Treaty (2009) is now part of the primary law of the ESCB. Monetary policy is one of the basic functions of the European System of Central Banks according to article 127(2) of TFEU. Article 3 TFEU states that “[t]he Union shall have exclusive competence [for] monetary policy for the Member States whose currency is the euro” and Article 282(1) TEU makes it clear that the competence for the Union’s monetary policy rests in the Eurosystem. 6 PE 619.020 Virtual currencies in Eurosystem: challenges ahead entities lending to investors exposed in the VC market, (iv) regulated entities structuring regulated financial products on underlying VC assets. In particular, under (ii), there is a chance that the VC-based shadow payments system could grow to systemically important size. Further, the unregulated nature of VCs, and the dominance of quasi-anonymous VC schemes, raises challenges in terms of Anti-Money Laundering (‘AML’), Countering the Financing of Terrorism (‘CFT’) and tax evasion. 7. If the VC market continues to grow, central banks such as the ECB may face challenges in their monetary policy role as a large category of money-like payment instruments would be out of their oversight and control. 8. Central bank issued VCs (‘CBVCs’) have recently been proposed by a number of central banks in Europe and beyond. These proposals are motivated by a number of reasons, including (i) replacing cash as directly accessible central bank money, (ii) increasing the efficiency of central bank clearing and settlement functions, and (iii) augmenting central banks’ monetary policy toolkit. 9. Financial regulation generally follows crises.
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